Environment law’s detailed overhaul

July 10, 2021 | 08:00
The National Assembly last November passed the revised Law on Environmental Protection which will take effect from January 1, 2022, replacing the old version released in 2014. Lawyers Le Minh Thuy and Nguyen Quang Vu from Venture North Law Ltd. point out some of the notable new sections of the legislation.

The Law on Environmental Protection provides several criteria to classify investment projects. These include the scale, capacity, and type of production, business, or services; the area of land use, of land with water surface and/or of sea area, and scale of exploitation of natural resources; and sensitive environmental factors.

Such criteria will help determine which project is subject to environment impact preliminary assessment (EIPA), environment impact assessment (EIA), and environment permit.

The previous 2014 law only provided general criteria such as projects subject to the decision on investment intentions made by the National Assembly, government, and the prime minister; or projects that use land parcels situated in wildlife sanctuaries, national parks, historical/cultural monuments, world heritage sites, biosphere reserves, and scenic beauty areas that have been ranked; or projects that can cause adverse effects on the environment.

Criteria under the new law have a specified and narrowed scope of projects subject to environment licenses and approvals.

One new such criterion is the sensitive environmental factor. Such factors include, among others, concentrated residential areas, sources of water used for domestic water supply, natural conservation zones, the type of any forest, physical and cultural heritage and other natural heritage, land for wet rice cultivation of two or more crops, important wetlands, and requirements on relocation and resettlement.

Based on the criteria, a project will be classified into one of four groups – those witsh high, standard, low, or no risk of an adverse impact on the environment. A detailed list of projects in each group was attached in the draft decree of the government guiding the new law. Applicable environmental criteria to each group as well as the main requirements for each is summarised (see chart).

Only investment ventures of Group I, II, and III which generate wastewater, dust, and emissions discharged into the environment which must be treated, or which generate hazardous waste, which must be managed in accordance with the regulations on waste management when projects are put into official operation.

Environment law’s detailed overhaul

New preliminary assessments

This is a new concept under the upcoming law. The EIPA applies to Group I projects and must be conducted during the pre-feasibility study stage of the investment in construction, of the proposal for a policy decision, or for approval of policy.

Unlike other new provisions, those on the contents of the EIPA have been effective from February 2021 in alignment with the effects of new amendments to the construction law. That means, from February 1 investors are being required to conduct the EIPA for their proposed investment projects as required in the pre-feasibility study stage under the construction law.

Obtainment of approval of investment policy may be more difficult because the EIPA will be reviewed by the competent authority together with the application for approval of pre-feasibility study or investment policy. Currently, the law is not clear on criteria for the competent authority to review and evaluate the EIPA. It seems that the authority may have discretion to decide whether the investor’s EIPA is satisfied or not.

Amendment to EIA

All projects under Group I and types 4, 5, 6 and 7 of Group II (except urgent public investment projects) are subject to the EIA. Under the new Law on Environmental Protection, timing for making and submitting the EIA report for evaluation is clearer.

In particular, the investor needs to make the EIA report at the same time as making the feasibility study report or equivalent document, and the EIA report must be submitted to the competent authority for evaluation before the feasibility study report is concluded on evaluation.

The approval of the EIA report under old law is replaced by an evaluation approval decision (EAD). After obtaining this, the investor must adjust and supplement the contents of the project and the EIA report to match the contents and requirements for environmental protection stated in the EAD. This approach may save time for the investor to obtain such a decision as they may not need to amend the EIA report before issuance of the EAD. However, it will increase the responsibilities of the investor for ensuring consistency between the EAD and other documents, as such the EIA report.

New environment permit

This is also a fresh concept under the new legislation. The environment permit is used for discharging waste, managing waste, and importing scrap from overseas as raw material for production.

The new permit covers several areas in relation to waste and import of scrap under the 2014 law and other relevant laws, such as permits for discharging wastewater into water sources under the Law on Water Resources, discharging wastewater to irrigation works under the Law on Irrigation, and hazardous waste treatment and owner registration.

The investor can continue using permits issued under old laws until expiry date of the relevant permit or until the end of five years from the effective date of the new law if the permit has no time limit.

The environment permit applies to two areas. First are investment projects of Group I-III which generate wastewater, dust, and emissions discharged into the environment which must be treated, or which generate hazardous waste which must be managed in accordance with the regulations on waste management when the projects are put into official operation. The second are investment projects, establishments, concentrated production, business and service zones, and industrial clusters operating before the effective date of the new law, which have the same environmental criteria as the first group.

The environment permit will specify permit scope and requirements on environmental protection, and will be valid for 7-10 years depending on the type of venture.

New environment registration

Another new aspect to the upcoming Law on Environmental Protection is that projects or production, business, or service establishments which generate waste but are not subject to environment permits must conduct an environment registration, unless otherwise exempted.

The new law specifies and narrows entities required to carry out the environment registration to those generating waste. This is a different approach in comparison to registration of environment protection plan under the previous law. The plan applies to projects which are generally not subject to EIA, and are determined based on scale and capacity but not the level of waste generation of such project.

For new projects funded after the effective date of the new law, depending on the type of project, the environment registration must be conducted before issuance of construction permit or discharge of waste into the environment, or official operation. For production, business, or service establishments operating before the effective date, registration must be conducted within 24 months of it coming into effect.

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